Docket Number: 55831-2004

EMPLOYEE: [Name Deleted]

CLAIMANTS: [Name Deleted]

[Name Deleted]

[Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBERS: 55831-2004

58225-2005

58543-2005

DECISION DATE: July 29, 2005

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch concerning your claims for compensation under 42 U.S.C. § 7384 of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act). Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is sufficient to allow compensation under 42 U.S.C. § 7384 of the Act for your claims based on [Employee’s] condition of lung cancer.

STATEMENT OF THE CASE

On July 31, 2001, [Employee’s Spouse] filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) for compensation as the surviving spouse of [Employee], a uranium worker. On August 17, 2001, the Department of Labor received verification from the Department of Justice that [Employee’s Spouse] filed for an award under section 5 of the Radiation Exposure Compensation Act (RECA) for the condition of lung cancer as the surviving beneficiary of [Employee], for the medical condition of lung cancer, which was approved for an award of $100,000 under section 5 of the RECA, on January 15, 1999. Based on the award under section 5 of the RECA, on August 30, 2001, the Denver district office recommended acceptance of [Employee’s Spouse] claim. On December 13, 2001, the Final Adjudication Branch issued a Final Decision to accept [Employee’s Spouse’s] claim; however, she had passed away on September 10, 2001, and her claim was administratively closed. By Modification Order dated September 13, 2002, the Director vacated the December 13, 2002 Final Decision and remanded the claim to the Denver district office for the development and determination of survivor entitlement(s).

On March 23, 2004, you ([Claimant #1]) submitted a Form EE-2, seeking benefits in the amount of $50,000 as a surviving child of a uranium worker who had lung cancer. You provided a copy of your birth certificate which indicated you are a child of the employee.

[Employee Spouse] had two living children from a previous marriage, [Claimant #3] and [Claimant # 2]. [Employee’s Spouse’s] third child, [Employee’s Spouse’s third child], passed away at age twenty (a newspaper article regarding his accident was provided). The Denver district office sent letters and claim forms to [Claimant #3] and [Claimant #2]. On March 26, 2004, [Claimant #3] submitted a letter indicating he did not believe that he would qualify as a surviving stepchild as he was a married adult at the time his mother and stepfather were married. [Claimant #3] and [Claimant #2] did not apply for benefits at that time.

On May 12, 2004, the Denver district office issued a recommended acceptance of [Claimant #1’s] claim for compensation. By Remand Order dated June 16, 2004, the Final Adjudication Branch vacated the May 12, 2004 recommended decision and remanded the case to the Denver district office as further development of survivorship issues was needed.

On June 14 ([Claimant #2]) and June 15, 2004, ([Claimant #3]), you submitted Forms EE-2, seeking benefits in the amount of $50,000 as surviving stepchildren of a uranium worker who had lung cancer. You provided copies of your birth certificates which indicate you are the children of [Employee’s Spouse].

The record includes statements by [Claimant #3], [Claimant #2] and [Claimant #2’s spouse] ([Claimant #2’s spouse]), family photographs, a genealogical record, and the obituary of [Employee] as evidence that [Claimant #3] and [Claimant #2] lived in a parent-child relationship with [Employee].

On November 5, 2004, the Denver district office recommended approval of your claims as eligible survivors of a covered uranium worker entitled to compensation totaling $50,000 pursuant to §§ 7384u(a), 7384u(e)(1)(B) and 7384u(e)(3)(B) of the Act. See 42 U.S.C. § 7384u(a), (e)(1)(B) and (e)(3)(B). The compensation was recommended to be distributed as follows: [Claimant #1] in the amount of $16,666.67; [Claimant #3] in the amount of $16,666.67; and [Claimant #2] in the amount of $16,666.66.

On November 17 ([Claimant #3]) and November 22, 2004 ([Claimant #2]), the Final Adjudication Branch received written notice that you waived your right to file objections to the November 5, 2004 recommended decision.

OBJECTIONS

On November 22, 2004, the Final Adjudication Branch received your ([Claimant #1]) letter (dated November 15, 2004) of objection to the recommended decision with your request for oral hearing.

After due notice, the Final Adjudication Branch held a hearing in Salt Lake City, Utah on January 11, 2005. [Claimant #1] and [Claimant #3] testified in person and [Claimant #2], with [Claimant #2’s spouse], witness, testified via a telephone conference call. The following exhibits were submitted by [Claimant #1] on the date of the hearing:

Exhibit 1: A January 11, 2005 letter by [Claimant #1], which was read onto the record at the hearing.

Exhibit 2: A November 24, 2004 letter by [Claimant #1], addressed to President George W. Bush.

The main issues you ([Claimant #1]) brought forth in your objection letter and at the hearing are summarized as follows:

1. You contend that you should be awarded $50,000.00, as the surviving child of the employee (Letter of objection; Transcript (Tr.) 8-13).
2. You disagree with the use of family photographs and obituaries in establishing the relationship between your father and his stepchildren (Letter of objections; Tr. 14-16).
3. You disagree with Findings of Fact number five in the November 5, 2004 recommended decision, indicating [Claimant #2] lived with the employee in a parent-child relationship (Letter of objection; Tr. 14-15).
4. You disagree with Findings of Fact number six in the November 5, 2004 recommended decision, indicating [Claimant #3] lived with the employee in a parent-child relationship (Letter of objection; Tr. 14-15).
5. You are dissatisfied with the handling of your claim (Letter of objection; Tr. 8-14, 17-19, 34-35).
6. A copy of the transcript of the administrative hearing was sent to each participant at the hearing as an opportunity to provide corrections/and or comments.

The second, third, and fourth issues all relate to issue number one, your ([Claimant #1]) contention that you should be awarded compensation in the amount of $50,0000, and that the stepchildren of the employee ([Claimant #3] and [Claimant #2]) should not be awarded survivor benefits in this case.

The fact that compensation is payable and the amount ($50,000 total) is not in dispute in this case. The regulations provide that if there is no surviving spouse, the compensation shall be paid in equal shares to all children of the deceased covered Part B employee. See 20 C.F.R. § 30.501(a)(2). The regulations define a “child” or “children” to include a recognized child, a stepchild who lived with that individual in a regular parent-child relationship, and an adopted child of that individual. See 20 C.F.R. § 30.500(a)(2).

You ([Claimant #1]) established that you are a child of the employee by providing a copy of your birth certificate, showing the employee as your biological father.

[Claimant #3] (born [Claimant #3’s date of birth]) and [Claimant #2] (born [Claimant #2’s date of birth]) were both adults at the time their mother ([Employee’s Spouse]) married the employee on July 18, 1955. [Employee’s Spouse] had a third child, [Employee’s Spouse’s third child] (born [Employee’s Spouse’s third child’s date of birth]), who passed away at age twenty. In cases involving a stepchild who was an adult at the time of marriage, supportive evidence of a parent-child relationship may consist of documentation showing that the stepchild was the primary contact in medical dealings with the deceased employee, provided financial support for the deceased employee, or had the employee living with him/her. Other evidence, including medical reports, letters from a physician, receipts showing the stepchild purchased medical equipment, supplies or medicine for the employee, insurance policies, wills, photographs, and newspaper articles (i.e., obituary) may also be considered. See Federal (EEOICPA) Procedure Manual, Chapter 2-0200.5(3) (September 2004). In addition, there is no minimum time requirement for the stepchild to have lived in the same household as the covered employee to fulfill the requirement to have “lived with the employee in a parent-child relationship.” Visits during holidays, a stepchild caring for an employee, and/or stays at one another’s home at any given time may fulfill this requirement. See Federal (EEOICPA) Procedure Manual, Chapter 2-0200.5(5) (September 2004).

The record includes a June 13, 2004 letter by [Claimant #3] in which he indicated he and his family stayed with [Employee] and [Employee’s Spouse] during his visits from Spanish Fork to Moab, Utah. A photograph was provided identifying [Employee] and [Employee’s Spouse], as well as [Claimant #3] and his family at Christmas dinner. In addition, a photograph of a family gathered around a Christmas tree with opened gifts was provided, and [Claimant #3], two of his small children, [Employee] and [Employee’s Spouse] were identified in the photograph. [Claimant #3] indicated this picture was taken at his home in Spanish Fork, Utah.

The record also includes a May 28, 2004 letter by [Claimant #2], in which he indicated he lived with [Employee] and [Employee’s Spouse] for six months in 1957, and that he visited the employee in the hospital in Grand Junction, Colorado. Photographs of a family hunting outing were provided in which [Employee], [Claimant #1] and [Claimant #2] were identified, as well as [Claimant #2’s] son and [Claimant #3’s] son. A genealogical record of the [Employee’s family name’s] family was provided and indicated that [Claimant #2] named his son “[Claimant #2’s son’s name],” apparently after [Employee]. [Claimant #1] testified that both names are pronounced the same even though the spelling is different. [Claimant #1] testified also that the employee helped [Claimant #2] get a job around 1956, he lived with the employee for four months at that time (Tr. 25), and [Claimant #2] and his family lived with the employee for approximately six months while his family was searching for a home (Tr. 26). Further, the record includes the obituary for [Employee]. The obituary shows the employee’s daughter as [Claimant #1’s married name] and his stepsons as [Claimant #3] and [Claimant #2].

The preponderance of the evidence of record indicates that the claimants [Claimant #3] and [Claimant #2] lived in a parent-child relationship with the employee,[Employee].

Your fifth issue indicates you are dissatisfied with the handling of your claim because it involved remand, and the opportunity for other survivors to file a claim. Pursuant to the authority granted by § 30.317 of the EEOICPA regulations, at any time before the issuance of its final decision, the Final Adjudication Branch may return a claim to the district office for further development and/or issuance of a new recommended decision without issuing a final decision, whether or not requested to do so by the claimant. See 20 C.F.R. § 30.317. Under this authority, the Final Adjudication Branch issued a Remand Order on June 16, 2004, vacating the May 12, 2004 recommended decision. The Final Adjudication Branch directed the Denver district office to do further survivorship development and to issue a new recommended decision based on that development. The Denver district office completed its survivorship development and issued a new recommended decision based on that development on November 5, 2004. Thus, your claim was handled in accordance with the regulations that govern the Act.

FINDINGS OF FACT

1. On July 31, 2001, [Employee’s Spouse] filed a claim as a surviving spouse of a uranium worker. [Employee’s Spouse] passed away on September 10, 2001, and her claim was administratively closed.
2. On August 17, 2001, the Department of Justice verified that [Employee’s Spouse] had filed as the eligible surviving RECA beneficiary of the employee and had been approved for an award of $100,000 under section 5 of the Radiation Exposure Compensation Act on January 15, 1999 for the medical condition of lung cancer.
3. The employee died on March 26, 1973 as a result of squamous cell carcinoma of the lung and he worked in the mining business.
4. [Claimant #1] filed a claim as a surviving child of a uranium worker on March 23, 2004. [Claimant #1] established that she is a surviving child of a uranium worker.
5. On June 14, 2004, [Claimant #2] filed a claim as a surviving stepchild of a uranium worker. [Claimant #2] provided evidence establishing that he lived with the employee in a parent-child relationship. [Claimant #2] is a surviving stepchild of a uranium worker.
6. On June 15, 2004, [Claimant #3] filed a claim as a surviving stepchild of a uranium worker. [Claimant #3] provided evidence establishing that he lived with the employee in a parent-child relationship. [Claimant #3] is a surviving stepchild of a uranium worker.

CONCLUSIONS OF LAW

I have carefully reviewed the evidence of record, including your letters, your testimony at the administrative hearing, and additional documentation you provided.

The EEOICPA provides that an individual who receives, or has received, $100,000 under section 5 of the Radiation Exposure Compensation Act (42 U.S.C. § 2210 note) for a claim made under that Act, or the survivor of that covered uranium employee if the employee is deceased, shall receive compensation under this section in the amount of $50,000. See 42 U.S.C. § 7384u(a).

The undersigned notes your ([Claimant #1]) objections to the recommended decision; however, they do not change the outcome of the case. The Final Adjudication Branch is bound by the provisions of the Energy Employees Occupational Illness Compensation Program Act and has no authority to depart from the Act and implementing regulations.

You ([Claimant #1], [Claimant #3] and [Claimant #2]) have demonstrated that you are the surviving children (daughter and stepsons) and eligible beneficiaries of a uranium worker. Therefore, [Claimant #1] is entitled to compensation in the amount of $16, 666.67; [Claimant #3] is entitled to compensation in the amount of $16, 666.67; and [Claimant #2] is entitled to compensation in the amount of 16, 666.66; totaling $50,000, pursuant to 42 U.S.C. § 7384u(a), 7384u(e)(1)(B), and 7384u(e)(3)(B) of the EEOICPA.

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is sufficient to allow compensation under 42 U.S.C. § 7384 of the Act for your claims based on [Employee’s] condition of lung cancer. Accordingly, your claim for compensation is accepted.

Seattle, Washington

___________________________________________

Rosanne M. Dummer, District Manager

Final Adjudication Branch Seattle